Alimony (spousal support) is a hot, often contested issue when one party is forced to pay a former spouse. Also, unlike child support, there are no clear guidelines on how to determine amounts of support, which can make the process subjective. Because of this uncertainty, it is important to work with an experienced attorney you can trust to properly assess your case and aggressively protect your rights.
PROTECT YOUR RIGHTS AND SECURITY DURING AN ALIMONY DISPUTE
Whether you are seeking to collect alimony or prevent unmanageable support obligations, it is absolutely critical to know your rights and work with a trusted alimony and spousal support attorney. As your attorney, I will do my best to create realistic expectations, inform you of potential pitfalls in your case, and aggressively pursue your interests either in negotiations or in court.
Alimony is based on the need of one spouse to receive support income and the ability to pay of the other spouse. The following factors are relevant:
Current income of both parties
Employment history of the parties
Duration of marriage
Education of both parties
Standard of living established during the marriage
TEMPORARY ALIMONY OR SPOUSAL SUPPORT
It is possible for you to receive temporary support while the divorce is in process. At first, it may be unusually high, taking into account the recent separation of the parties, the expense of two households and probably a very high mortgage payment for the former marital residence. This is achieved through the first short hearings, which are calledpendente lite or temporary support and relief hearings.
REHABILITATIVE ALIMONY OR SPOUSAL SUPPORT
When a couple is married less than 10 years, alimony may be paid for a period of time and then end. The court will generally order rehabilitative alimony to provide the lower earning spouse support while they return to school or receive training to increase income. You may be liable for rehabilitative alimony or eligible to receive it if your spouse was the sole breadwinner and you do not have the education or skill to support yourself at the same standard of living or if your respective incomes show marked discrepancy.
PERMANENT ALIMONY OR SPOUSAL SUPPORT
Once permanent alimony is ordered, it only ends if either party dies or if the recipient spouse remarries or cohabits for a period of more than 12 months. Alimony can be modified if there is a material change in circumstances, for instance, in the respective income of the parties. If you are seeking to receive permanent alimony or want to prevent permanent alimony obligations, it is important to work with an experienced attorney who can inform you of your rights and prepare your case at the outset to achieve your desired results.
IS SPOUSAL SUPPORT AUTOMATIC IN A DIVORCE?
No. Spousal support, or alimony, is not a given in a Virginia divorce. An attorney experienced in family law can give you a more definite answer about whether you are eligible for or will be required to pay alimony.
There are numerous considerations that guide the process of determining spousal support, and each case is unique. An initial barometer to gauge a situation is to look at the difference between one spouse’s ability to pay compared to the other’s need for sufficient income. For example, if one spouse has put his or her career on hold for the benefit of the family the wage earning spouse may be required to pay alimony. A spouse may be denied support if it is proven that he or she has committed adultery.
WHO MAKES THE DECISIONS REGARDING SUPPORT?
Alimony can be decided by the divorcing couple during mediation or collaboration, or decided by the court should litigation occur.
WHAT FACORS CONTRIBUTE TO DETERMINING THE AMOUNT AND DURATION OF SPOUSAL SUPPORT?
According to the Code of Virginia (Title 20-107.1) the following will be considered when deciding the nature, amount, and duration of alimony:
The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature.
The standard of living established during the marriage.
The duration of the marriage.
The age and physical and mental condition of the parties and any special circumstances of the family.
The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home.
The contributions of each party to the well-being of the family.
The property interests of the parties–real and personal, tangible and intangible.
The provisions made with regard to the marital property division.
The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity.
The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability.
The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market.
The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party.
Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
WHAT IS TEMPORARY SUPPORT?
Temporary support is available prior to the finalization of a divorce. Temporary support is determined by guidelines taking into account each party’s incomes.
HOW LONG IS SPOUSAL SUPPORT PAID AFTER A DIVORCE?
One of the contributing factors in determining the duration of spousal support is the length of the marriage. In shorter marriages, support is commonly paid for a defined duration. In longer marriages alimony may be indefinite.
In any case, absent an agreement otherwise, spousal support ends when either spouse dies or the spouse receiving alimony remarries or is proven to have cohabited with another individual in a relationship analogous to marriage for one year or more.
IS SPOUSAL SUPPORT TAXABLE INCOME?
Typically, yes. The spouse receiving alimony is required to declare the income on his or her taxes. The spouse paying support may deduct the amount from his or her income tax. However, the tax implications of support should be discussed with your attorney.
HOW IS SPOUSAL SUPPORT PAID?
Spousal support may be paid in increments over time or in a lump sum.
Factors for Spousal Support
§ 20-107.1. Court may decree as to maintenance and support of spouses
Pursuant to any proceeding arising under subsection L of § 16.1-241 or upon the entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may make such further decree as it shall deem expedient concerning the maintenance and support of the spouses. However, the court shall have no authority to decree maintenance and support payable by the estate of a deceased spouse.
Any maintenance and support shall be subject to the provisions of § 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of divorce under the provisions of subdivision (1) of § 20-91. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.
The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof.
In addition to or in lieu of an award pursuant to subsection C, the court may reserve the right of a party to receive support in the future. In any case in which the right to support is so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of the marriage and the date of separation. Once granted, the duration of such a reservation shall not be subject to modification.
The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of § 20-91 or § 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:
The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature
The standard of living established during the marriage
The duration of the marriage
The age and physical and mental condition of the parties and any special circumstances of the family
The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home
The contributions, monetary and non-monetary, of each party to the well-being of the family
The property interests of the parties, both real and personal, tangible and intangible
The provisions made with regard to the marital property under § 20-107.3
The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity
The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability
The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market
The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party
Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
In contested cases in the circuit courts, any order granting, reserving or denying a request for spousal support shall be accompanied by written findings and conclusions of the court identifying the factors in subsection E which support the court’s order. If the court awards periodic support for a defined duration, such findings shall identify the basis for the nature, amount and duration of the award and, if appropriate, a specification of the events and circumstances reasonably contemplated by the court which support the award.
For purposes of this section and § 20-109, “date of separation” means the earliest date at which the parties are physically separated and at least one party intends such separation to be permanent provided the separation is continuous thereafter and “defined duration” means a period of time (i) with a specific beginning and ending date or (ii) specified in relation to the occurrence or cessation of an event or condition other than death or termination pursuant to § 20-110.
Where there are no minor children whom the parties have a mutual duty to support, an order directing the payment of spousal support, including those orders confirming separation agreements, entered on or after October 1, 1985, whether they are original orders or modifications of existing orders, shall contain the following:
If known, the name, date of birth and social security number of each party and, unless otherwise ordered, each party’s residential and, if different, mailing address, residential and employer telephone number, driver’s license number, and the name and address of his employer; however, when a protective order has been issued or the court otherwise finds reason to believe that a party is at risk of physical or emotional harm from the other party, information other than the name of the party at risk shall not be included in the order
The amount of periodic spousal support expressed in fixed sums, together with the payment interval, the date payments are due, and the date the first payment is due
A statement as to whether there is an order for health care coverage for a party
If support arrearages exist, (i) to whom an arrearage is owed and the amount of the arrearage, (ii) the period of time for which such arrearage is calculated, and (iii) a direction that all payments are to be credited to current spousal support obligations first, with any payment in excess of the current obligation applied to arrearages
If spousal support payments are ordered to be paid directly to the obligee, and unless the court for good cause shown orders otherwise, the parties shall give each other and the court at least 30 days’ written notice, in advance, of any change of address and any change of telephone number within 30 days after the change
Notice that in determination of a spousal support obligation, the support obligation as it becomes due and unpaid creates a judgment by operation of law.
Take the time on your own to learn about legal matters in Virginia. This should never be used as a substitute for the advice of experienced counsel; this education empowers you and can help frame your discussions with your attorney.
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